Hom v. State, 900079

• Decision Date: 09 August 1990
• Docket Number: No. 900079,900079
• Citation: 459 N.W.2d 823
• Parties: 62 Ed. Law Rep. 710 Mildred HOM, Plaintiff and Appellant, v. STATE of North Dakota, a public corporation, d/b/a Dickinson State University, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 823

459 N.W.2d 823

62 Ed. Law Rep. 710

Mildred HOM, Plaintiff and Appellant, v. STATE of North Dakota, a public corporation, d/b/a Dickinson State University, Defendant and Appellee.

Civ. No. 900079.

Supreme Court of North Dakota.

Aug. 9, 1990.

Chapman & Chapman, Bismarck, for plaintiff and appellant; argued by Daniel J. Chapman.

Rick D. Johnson (argued), Sp. Asst. Atty. Gen., Fargo, for defendant and appellee.

MESCHKE, Justice.

Mildred Hom appealed from a judgment dismissing her action against the State of North Dakota, doing business as Dickinson State University ["DSU"], for breach of her employment contract. We reverse and remand for further proceedings consistent with this opinion.

Hom was a non-tenured, probationary faculty member at DSU. On June 8, 1985, Hom received a terminal contract from DSU for the 1985-1986 academic year. A terminal contract includes a notice that the teacher's employment will terminate at the conclusion of the next academic year. See Stensrud v. Mayville State College, 368 N.W.2d 519, 522 n. 3 (N.D.1985).

Termination of faculty members is governed by regulations adopted by the State Board of Higher Education as part of its Policy Manual. These regulations are part of the employment contract between the institution and faculty member. See Stensrud, 368 N.W.2d at 522; Sacchini v. Dickinson State College, 338 N.W.2d 81, 84 (N.D.1983). The relevant regulation in this case is Section 605, entitled Regulations on Academic Freedom, Tenure, and Due Process. Pursuant to this regulation, Hom was entitled to notice of nonrenewal twelve months before expiration of her appointment. The terminal contract received in June 1985 gave this notice.

The regulations establish an expedited process for institutional review. Within seven days after receipt of the notice of nonrenewal, the faculty member may request written reasons for the decision to terminate. The institution must supply reasons within seven days of receipt of the request. The faculty member then has fifteen days to request reconsideration of the decision to terminate, and the institution must respond within fifteen days. Within sixty days after receipt of the notice of nonrenewal the faculty member may request review by a Special Review Committee, but this review is limited to procedural issues, and the Special Review Committee is specifically prohibited from reviewing the merits of whether the faculty member should be reappointed.

On the same day she received her terminal contract containing the notice of nonrenewal, Hom wrote to DSU requesting written reasons for the decision to terminate her employment. DSU did not respond. On August 10, 1985, Hom again requested reasons. DSU again ignored her request. On January 16, 1986, over seven months after her first request for reasons, DSU finally furnished Hom with the reasons for her termination.

Hom subsequently sued DSU for breach of contract. After a trial, the trial court determined that DSU's delivery of reasons in January 1986 constituted substantial compliance with the regulations. The court thus concluded that DSU had not breached the contract and dismissed Hom's action. Hom appealed.

Hom argues that the trial court's finding that DSU substantially complied with the regulations is clearly erroneous. We agree.

We first embraced the substantial compliance doctrine in the context of these regulations in Stensrud. In that case, the college president, rather than responding in writing to Stensrud's request for reasons, met with her and orally advised her of the reasons for her nonrenewal. Stensrud then instituted the procedures for institutional reconsideration and review by a Special Review Committee. When her nonrenewal was upheld, Stensrud sued the college, alleging that the oral statement of reasons did not comply with Section 605 of the Policy Manual, which requires that the reasons be given in writing.

In affirming a summary judgment dismissing Stensrud's action, we endorsed the substantial compliance rule:

Generally, substantial compliance with the procedural requirements for termination is sufficient if their purpose is fulfilled.... We endorse the rationale articulated in Piacitelli [v. Southern Utah State College, 636 P.2d 1063, 1067 (Utah 1981) ]:

While exact conformance with the precise terms of the termination procedures is doubtless the least controversial course, so long as the substantial interests those procedures are designed to safeguard are in fact satisfied and protected, failure to conform to every technical detail of the termination procedure is not actionable.

Stensrud, 368 N.W.2d at 522. Noting that the purpose of the notification requirement "is to ensure receipt of reasonable notice from the responsible person, so that [the faculty member] could implement the subsequent procedural rights available to her with full knowledge of the identity of the person responsible for the decision to terminate," we agreed with the trial court that the president's oral notification of the reasons for nonrenewal, allowing Stensrud to implement the reconsideration and review procedures, constituted substantial compliance with the regulations.

The trial court in this case concluded that the primary purpose of the regulation requiring DSU to supply written reasons for nonrenewal is to allow the faculty member to exercise her right to seek reconsideration and review. The court further found that DSU's delivery of reasons in January 1986 substantially complied with the regulations. The trial court's interpretation of the regulations to ascertain their purpose is a question of law which is fully reviewable by this court on appeal, whereas the determination whether DSU's conduct was in substantial compliance with the regulations, i.e. whether their purpose has been effectuated, is a question of fact. Smith v. State, 389 N.W.2d 808, 810 (N.D.1986); Stensrud, 368 N.W.2d at 523. Although the trial court's determination of the purpose of the regulations is correct so far as it goes, it is incomplete.

The regulations include a well-delineated timetable requiring an expedited review procedure. Each step in the process must be completed in a matter of days, and the entire procedure is to be completed within a few months. As a result,...